Human Rights in China calls for extension of consultation on Hong Kong’s Article 23

For Immediate Release

Human Rights in China has made a submission to the government of the Hong Kong Special Administrative Region regarding the government’s consultation document outlining its proposals to implement Article 23 of the Basic Law.

Article 23 provides for the enactment of laws to prohibit treason, secession, sedition, and subversion against the Central People's Government, as well as theft of state secrets and political activities by foreign political organizations in the SAR.

HRIC expresses concern over the implications of the proposed legislation for Hong Kong’s human rights situation, and recommends an extension of the consultation period. In addition, HRIC recommends that the Hong Kong SAR government issue a formal white paper so the public can review the specific language of the draft legislation.

Among its other proposals, HRIC calls for the government to

remove archaic language from the proposed legislation

eliminate the draft provisions relating to sedition, subversion, and secession

withdraw proposals to expand the definition of “state secrets”

eliminate proposals giving the central government in Beijing a role in the operation of the SAR’s security law

bring the proposed legislation into compliance with international standards and jurisprudence on security law

HRIC notes with great concern the chilling effect discussion of the proposed legislation has already had on Hong Kong, and urges the SAR government to address the legitimate concerns expressed by many groups regarding the proposals.

For more information, contact:
Stacy Mosher (English) 212-268-9074
Liu Qing (Chinese) 212-239-4495

Please see below for HRIC's Statement regarding Hong Kong's Article 23 and the following link for the background briefing paper in PDF Format:
HRIC Response to the Hong Kong SAR Consultation Document on proposals to implement Article 23 of the Basic Law (372 K)
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Human Rights in China Statement regarding Hong Kong’s Article 23

As an organization with an active research department in Hong Kong, Human Rights in China (HRIC) respectfully submits the following comments and recommendations to the Hong Kong SAR government regarding the consultation document on implementation of Article 23 of the Basic Law.

The government’s proposals encompass new and modified laws that will cover treason, secession, sedition, subversion, theft of state secrets, conduct of political activities in Hong Kong by foreign political organizations or bodies, and ties between political bodies in Hong Kong and overseas.

HRIC’s Hong Kong branch is a properly registered, openly operating research organization, and as such does not fit the proposed legislation’s definition of a political organization. At the same time, HRIC is concerned that once Hong Kong enacts the proposed new legislation, authorities on the Mainland or in Hong Kong could interpret and apply it in repressive ways and in violation of international human rights principles, obligations, and standards, to HRIC and other organizations active in promoting human rights in Hong Kong and the Mainland.

1. HRIC’s strongest misgivings concern the lack of clear definition of the kinds of organizations that will be proscribed under Article 23. In a worst-case scenario the legislation could threaten activities protected under universally recognized principles such as freedom of speech and freedom of association.
   
   
2. We also have strong concerns about the lack of well-defined mechanisms for oversight and due process to ensure that necessary security measures are implemented appropriately. In the case of existing security laws in China, a joint report by HRIC and Human Rights Watch identified numerous violations of the spirit of international human rights principles and covenants and made recommendations regarding appropriate limits on security measures (Whose Security? “State Security” in China’s New Criminal Code, April 1997). HRIC notes that although the Hong Kong government mentions both the Johannesburg Principles and international human rights law several times through the text of its consultation document, it violates the fundamental principles of both in its proposals for change to the security law of Hong Kong. The Johannesburg Principles emphasize the need for clear and concise legislative language and narrow tailoring of the law related to national security; the government’s proposals reflect neither clear nor concise language and include provisions beyond the appropriate scope of national security.
   
   
3. We note a chilling effect that discussion of Article 23 has already had on Hong Kong, even before the proposed measures are finalized and adopted. This does not bode well for Hong Kong as an example of how the “one country, two systems” concept can allow a free and open society to exist and flourish as part of China. HRIC, like many other organizations, fear that Article 23 will extend China’s closed and authoritarian system to Hong Kong and exert an increasingly repressive influence on Hong Kong residents to the great detriment of Hong Kong’s vibrant and open society.

For these reasons HRIC will continue to work in coalition with other concerned organizations to closely monitor developments in Hong Kong’s implementation of Article 23, and any impact on restricting freedoms and human rights in Hong Kong.

As the Hong Kong SAR government prepares the final draft for presentation to LegCo, HRIC urges it to seriously consider the following recommendations regarding the provisions currently outlined in the government’s consultation document:

Treason - Rather than continue to use existing centuries-old language that could potentially be manipulated to cover peaceful protest and dissent, the government should modernize the crime of treason in Hong Kong by expunging all antiquated terms from the law, and by creating a law of treason that covers only attempts to levy war against the government with the intent to overthrow it. In addition, the government should bring its proposals more in line with the Johannesburg Principles by eliminating ambiguity and duplication in the law, such as in Section 2(1)(d) of the Crimes Ordinance, that could be used to cover non-violent treasonous acts.

Secession - Hong Kong has never been used as a base for secessionist movements inside China. At the same time, its value as a place where important and sensitive issues regarding China’s present and future are discussed and debated would be put at risk with the creation of a secession offense. HRIC recommends that the government withdraw its proposal to create a separate offense of secession.

Sedition – The language of the existing statute on sedition could easily be stretched to cover legitimate political activity. It is unclear whether the government intends to remove this language from the statute, but it should do so. In addition, the government should abandon its proposals on seditious publication in order to preserve aggressive reporting and critical debate in Hong Kong.

Subversion – The government has failed to make a case for creating on offense of subversion. None of the countries cited in its proposal has a subversion law, and the government’s failure to narrowly define the proposed offense raises the risk of it being misapplied to the exercise of basic rights. HRIC recommends that the government withdraw its proposal to create a separate offense of subversion.

Theft of State Secrets - The government’s proposal to extend protection to information beyond state secrets is not required by Article 23. Proposals to protect categories of information other than state secrets should therefore be postponed until there has been full debate and resolution of important issues regarding the appropriate scope of Article 23 legislation.

Foreign political organizations – Past experience strongly indicates that the Hong Kong SAR government would not serve as an effective guarantor of the rights of assembly and association for the people of Hong Kong against possible encroachment by Beijing. Given that the Beijing government has banned several groups that have engaged in peaceful political and social activity, the Hong Kong SAR government should not enact legislation that would outlaw groups for having a “connection” with proscribed mainland groups.

Investigation powers – Whether or not the police need enhanced investigative powers is a matter of heated debate. Regardless, the expansion of such powers is simply not called for by Article 23, and should be left until the debate over Article 23 legislation is completed.

Explicit rights protections – In several jurisdictions, rights are protected against abuse through safeguards in the law that prevent normal political activity from being covered by security law. The Hong Kong SAR government should likewise make explicit provisions for the prevention of the misuse of security law. Similarly, the government should bring the proposed legislation into compliance with international standards and jurisprudence on security law.

The role of Beijing – The proposals call for the central government in Beijing to play a key role in the operation of security law in Hong Kong, even though the use of security law as an instrument for silencing critics of the government is a well-documented practice in China. Such provisions also violate the concept of “one country, two systems” and should be dropped.

Consultation –HRIC is particularly concerned that the government has presented a draft consultation document and not a draft White Bill, which means that members of the public still have little information as to how the Bill may be worded. There is a need for a longer public consultation period and a White Bill to be presented before the more final “Blue Bill” is issued.